11th Circuit today

The courtroom on the 12th floor of the King building was packed with law clerks and other observers this morning because Paul Clement was in the house to argue whether religious symbols can be trademarked: Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta, Appellant v. Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (docket).

The panel was Judges Wilson, Pryor, and Martin.

Cool stuff. 

Others appellate studs in the courtroom -- Elliot Scherker who argued a civil case; Paul Rashkind from the PD's office; Anne Schultz from the USAO; and rising AFPD appellate star Tracy Dreispul. 

And a special for you appellate geeks this morning -- the Green Bag has announced a new bobblehead for Justice Ginsburg.

Gene Stearns wins Bank Atlantic case in 11th Circuit

Here's the 11th Circuit opinion, affirming Judge Ungaro's decision to toss the jury verdict (prior coverage here).

Big win for Stearns Weaver-- Gene Stearns, Adam Schachter, Cecilia Simmons, Grey Mead, and Andrea Nathan.

From Judge Tjoflat's conclusion:

As Bancorp acknowledged in several public SEC filings during the class period, BankAtlantic’s assets were concentrated in loans tied to Florida real estate. As a result, BankAtlantic and Bancorp were particularly susceptible to any deterioration in the Florida real estate market, in addition to any national developments. To support a finding that Bancorp’s misstatements were a substantial factor in bringing about its  losses,therefore, State-Boston had to present evidence that would give a jury some indication, however rough, of how much of the decline in Bancorp’s stock price resulted not from the fraud but from the general downturn in the Florida real estate
market—the risk of which Bancorp is not alleged to have concealed. ... None of its evidence excluded the possibility that class members’ losses resulted not from anything specific about BankAtlantic’s commercial real estate portfolio that Bancorp hid from the public, but from market forces that it had warned of—and that would likely have caused significant losses for an investor in any bank with a significant credit portfolio in commercial real estate in Florida in 2007. Bancorp is therefore entitled to judgment as a matter of law.

Monday morning

Seinfeld has this new web-only TV show.  I like.

SFL is covering the Emmanuel Roy case before Judge Turnoff and this letter.  SFL highlights this line:  "I trust that the court will not conclude that I have decided to stump my nose at it, for any party who does so does it as his own peril."  Too funny.

And here's the Herald interviewing Ervin Gonzalez: 

Q. What was your first job?
I worked as a bag boy and stock man at Winn Dixie while in High School at LaSalle high.
Q. What advice would you give to today’s law students?
Find and pursue your passion.
Q. What’s the last book you read.
“The last Boy,” a biography about Mickey Mantle.

The 11th Circuit is in town, and I have an argument tomorrow morning, so I'll be off-line until after that...

Read more here: http://www.miamiherald.com/2012/07/23/v-fullstory/2907544/miami-lawyer-ervin-gonzalez-tackles.html#storylink=cpy

Ex-Ice Chief Anthony Mangione pleads guilty

And he was immediately taken into custody.  He's looking at a minimum of 5 and max of 20 under his plea deal. Judge Marra is his judge.

 From the Sun-Sentinel:

The former leader ofU.S. Immigration and Customs Enforcementin South Florida has gone from spearheading the local fight against child pornography to facing at least five years in prison for transmitting sexually explicit images of children.
Anthony V. Mangione, 51, pleaded guilty Friday morning to a child pornography charge in the shocking case against the former ICE chief who once oversaw investigations of countless predators who exploited children. The 27-year law enforcement veteran was brought down the same way as many of those other defendants: an Internet provider flagged files being sent from Mangione's email account and alerted authorities.

***
Federal prosecutors said Mangione transmitted at least 15 images of children between the ages of 3 and 15 years old with their genitals exposed.
According toBroward Sheriff's Officesearch warrants, his suspicious Internet activity dated back to 2003 with Mangione using a multitude of online screen names in recent years, including thismomspanks33 and PastorRobertM.
Mangione had no visible supporters in the courtroom Friday morning. He arrived at the West Palm Beach federal courthouse with his attorney, David Howard.
He answered U.S. Magistrate Judge James Hopkins' questions in a clear, steady voice. After the hearing, he took off his suit jacket, tie and belt, and held his hands out to be handcuffed by two U.S. marshals.

Scalia vs. Zimmerman

Piers Morgan had Justice Scalia on last night and Hannity landed George Zimmerman. Must see TV for law nerds!

Scalia had lots of interesting things to say, and I liked how Morgan pushed him a bit.  Scalia said he is most proud that the Court doesn't really cite legislative history anymore and that he has helped move the Court to focus on just the text of the statute or Constitution.  Yet earlier in the interview, he said that he frequently reads the Federalist Papers to see what the Framers intended.  I'm not sure why the Federalist Papers are an okay source for intent, but legislative history is not...

Anyway, here is one clip from the interview:



And here is the NY Times coverage of the interview:

Asked by CNN’s Piers Morgan whether he and Chief Justice Roberts “have had a parting of the ways, gone from best buddies to warring enemies,” Justice Scalia first ducked the question. “Who told you that?” he asked. Mr. Morgan cited news reports, prompting Justice Scalia to respond: “You should not believe what you read about the court in the newspapers. It’s either been made up or been given to the newspapers by somebody who’s violating a confidence, which means that person is not reliable.” After protesting that he would not talk about internal matters, Justice Scalia relented. “No, I haven’t had a falling out with Justice Roberts,” he said. Asked whether there had been loud words or slammed doors, he said, “No, no, nothing like that.” More generally, Justice Scalia said his colleagues had good personal relationships even as they disagreed on legal matters. That is consistent with reports from other justices. “There are clashes on legal questions but not personally,” he said. “The press likes to paint us as nine scorpions in a bottle, and that’s just not the case at all.”

The NY Times also covers the Zimmerman interview:

The assault happened while Mr. Zimmerman tried to pull his cellphone out, he said. Mr. Zimmerman said he had yelled “help” repeatedly, hoping that the police would hear him. After he shot Mr. Martin, he said, he was “terrified” and nervous the police might shoot him if they saw him with a gun.

Mr. O’Mara said the state’s stand-your-ground self-defense law was appropriate for the case. The law permits people who fear great bodily injury or death at someone else’s hands to use lethal force to defend themselves.

Mr. Zimmerman said he had volunteered to take lie detector tests and voice tests, which he said he had passed. “I didn’t have anything to hide,” he said.

The interview ended with Mr. Zimmerman apologizing to the Martin family, and to America for any racial polarization the shooting may have caused.

To Mr. Martin’s family, “I would tell them again that I’m sorry,” he said, adding: “I am sorry they buried their child. I can’t imagine what it must feel like, and I pray for them daily.”

$3 million stolen Henri Matisse recovered by FBI

The one on the left is the real "Odalisque in Red Pants" and the one on the right was a fake on display Sofia Imber Contemporary Art Museum of Caracas, Venezuela.  According to the USAO press release Marcuello Guzman and Ornelas Lazo were arrested today:


According to the affidavit filed in support of the criminal complaint, this case was the result of an FBI undercover investigation. According to the allegations in the complaint affidavit, Marcuello negotiated the sale of the Matisse painting, which had been previously stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSI)) in Caracas, Venezuela in December 2002. The painting is valued at approximately $3 million. Marcuello allegedly admitted to the undercover agents during a meeting that he knew the painting was stolen and offered to sell the stolen painting for approximately $740,000.00. As part of the negotiations, Marcuello further agreed to have the painting transported by courier to the United States from Mexico, where the painting was being stored. The courier was subsequently identified as co-defendant Ornelas.

According to the affidavit, on July 16, 2012, Ornelas arrived at the Miami International Airport from Mexico City, Mexico, hand-carrying a red tube containing the painting. On July 17, 2012, defendants Marcuello and Ornelas met with undercover agents and produced the Matisse painting titled “Odalisque in Red Pants” from inside the red tube. Upon inspection by the undercover agents, the painting appeared consistent with the original Henri Matisse painting reported stolen from the MACCSI museum. At the conclusion of the meeting, Marcuello and Ornelas were arrested.

The Huffington Post has some interesting details:


In 2002, Venezuelan-born Miami art collector Genaro Ambrosino contacted SICAM after hearing that the painting was for sale. Director Rita Salvestrini told him "Odalisque in Red Pants" wasn't on the market, at which point museum officials discovered that the one in their collection had been swapped for a forgery.
One Venezuelan newspaper argued the Matisse may have been swapped during an exhibition loan in Spain in 1997, according to the Daily Mail, while other evidence points to the exchange having happened in 2000.
Either way, “Odalisque in Red Pants” had been a fixture on Art Loss Register's list of most valuable missing artwork. If convicted, according to the U.S. Attorney's office, Marcuello and Ornelas each face a possible maximum statutory sentence of up to ten years in prison.
Unfortunately, most stolen artwork is rarely recovered. According to the Christian Science Monitor, only about 15 percent of missing or stolen art returns to its rightful owner.
In 2004, the FBI created an Art Crime Team and set up a National Stolen Art File database. In the past 9 years, they have recovered over 2,650 items that amount to over $150 million, according to the Daily Mail.
"Generally speaking, art thieves are fairly good criminals, but they're terrible businessmen," Robert Wittman, an art-security consultant and former investigator for the FBI's national Art Crime Team, told the Associated Press. "And the true art is not the stealing, it's the selling."

"Our system of pleas then looks more like a system of railroading."

That's the NY Times op-ed discussing appellate waivers, one of the dirty little secrets of the federal criminal justice system. Here's more:

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself. 

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

Blogger's block

I wish I had something exciting to blog about this Monday morning...

I could try to tie in Miami by discussing how great the traffic is compared to, say, DC:

The usually punctual Sen. Patrick Leahy (D-Vt.) had some choice words for District of Columbia leaders this week, when he blamed their policies for making his 11-mile commute to Capitol Hill last an hour and 40 minutes on Wednesday.
"We go through a city that will spend millions of dollars and enforce parking meters and get fines, and pay for speed cameras which mainly make out of town companies rich, and so on," Leahy said after arriving about 10 minutes late to a 9:30 a.m. hearing. "But they can't coordinate their street lights when their street lights are broken."
Leahy, while pouring himself water on the dais of the Senate Judiciary Committee, didn't say where he was driving from or what roads he took. But he observed that "the main thoroughfares have a green light that will go on for one second and go 10 minutes red."

That prompted Sen. Chuck Grassley (R-Iowa) to joke: "Aren't you sure the problem probably is that they purposely don’t coordinate?"

Or compare the 11th Circuit conference to the 9th Circuit, which was planning a $1 million affair in Hawaii until Congress got wind of it:

Political controversy persists over a conference planned for federal judges on Maui, with two Republican senators calling for the event to be canceled or at least scaled back.

Sen. Jeff Sessions of Ala­bama and Sen. Chuck Grassley of Iowa, who have been questioning the need to hold the August conference at a "far-flung island paradise," sent another letter Friday to the chief judge of the 9th U.S. Circuit Court of Appeals.

"During this time of extraordinary debt, and given the history of opulence — including repeated trips to the Hawaiian Islands — we believe you should cancel the million-dollar conference," the letter said. "Failing that, ample opportunities to scale back costs at this event and at future conferences remain."

After that letter, the Circuit cancelled the conference.  Maybe they should call Adam Rabin to plan the next one.

But those comparisons seem like too much of a stretch.  The District is quiet.... Maybe we'll hear some exciting news today.  Send me your tips!